Cara L. Gallagher, weekend contributor, and James Coll, adjunct professor of Constitutional History at Hofstra University

The vacancy on the Supreme Court that materialized with the death of Associate Justice Antonin Scalia this past February, and endures into the current term that began last week, has Americans perplexed about the kind of Supreme Court we want to have. It also has us revisiting the kind of Supreme Court the U.S. Constitution requires us to have. These distinctly different contemplations, although both deserving of our attention, are all too often mistakenly confused as being the same concern.

Given the choice, I favor a nine-member Court. The downside of an even-numbered bench has been evident to most Americans as recently as the last term when important decisions about executive powers, immigration, and unions were left with 4-4 deadlocks for us to see the obvious benefit a ninth justice on the bench would have provided.

Yet just because I would rather have—and simple math would prefer—a fully-staffed Supreme Court doesn’t mean the Constitution requires it. Continue reading “Is Eight Enough?” →

By: Cara L. Gallagher, weekend contributor

This is a follow up on N.C. State Conference of the NAACP v. McCrory

African-American voters in North Carolina were “targeted with almost surgical precision” by the North Carolina legislature, according to a three-judge panel for the Fourth Circuit Court of Appeals. Judge Diana Gribbon Motz wrote the opinion dismantling, point by point, all the provisions rushed through the Legislature in the days immediately following the landmark voting rights decision in Shelby County v. Holder on June 25, 2013.

In the Shelby decision, the Supreme Court released states that, after passage of the 1965 Voting Rights Act, were required to clear all changes to voting policies and practices with either a federal court or the Department of Justice. Former slave states, where Jim Crow laws abound that disenfranchised minority voters for decades, were released from the pre-clearance requirement and allowed to make whatever changes they wanted to voting policies. States like North Carolina and Texas moved immediately – within days – to initiate laws increasing restrictions on voter access. Continue reading “NC voter laws ruled intentionally discriminatory by 4th Circuit Court” →

By Cara L. Gallagher, weekend contributor

In the first line of his 51-page dissent in Fisher v. The University of Texas at Austin, Justice Alito wrote that “something strange is going on at the Supreme Court.” Indeed, it was. I think it’s safe to say no one thought race-based admissions processes would survive after the first Fisher case in 2013. The four conservative Justices (Scalia included) have long been chomping at the bit to quash it, believing instead that the way to end race-based discrimination is to “stop discriminating on the basis of their race.” Universities have no less continued to try different ways to diversify campuses but have ostensibly been told by the SCOTUS: You’re doing it wrong.

Certainly Justice Kennedy, who authored the 4-person majority opinion in Fisher last week, seemed poised to tell the University of Texas at Austin they too were doing it wrong. Continue reading “A view from inside the SCOTUS: The affirmative action decision explained” →

Cara L. Gallagher, Weekend Contributor

Backsliding. Justice Ginsburg warned of this in her famous Shelby County v. Holder dissent in 2013. Eliminating Section 4 of the 1965 Voting Rights Act, the pre-clearance requirement for states that had a history of suppressing minority votes, would result in a return to racial discrimination and disenfranchisement, Ginsburg said. Prior to Shelby, states with such records had to get approval from either the Department of Justice or the D.C. Circuit Court of Appeals before changing any voting laws under Section 5 of the VRA.

Was her warning heeded?

Not in North Carolina. This is a state that didn’t even wait to read her dissent, or likely the entirety of the majority decision, as they radically changed voting laws on the same day Shelby was decided. Continue reading “Backsliding & voting rights post-Shelby” →

Cara L. Gallagher
Weekend Contributor

This Supreme Court term, there is something for everyone in the remaining decisions the Justices will deliver in the next few days. I would argue this term there are more “big” and mid-level cases that will affect the widest and most diverse audience of stakeholders in years: women, immigrants, college applicants, (alleged) drunk drivers, police, and skeptical voters. The issues challenged in these cases spotlight timeless debates over states’ rights, political corruption, and the limits of executive action. These topics cut across scores of different constituencies, and the decisions – assuming the Court avoids splitting 4-4 – will significantly impact Americans on both national and state levels.

If you know about the first three big cases it’s likely because those are the ones that got the most media attention. And while immigration, affirmative action, and abortion undoubtedly impact millions of people, so do the last three. Ask anyone if they think low voter turnout has something to do with distrust of elected officials, if they’re afraid of police encounters, or if they know someone who’s been pulled over for suspicion of or received a DUI? Likely they’ll answer “yes” to one, two, or all three. These cases aren’t glamorous. They’re not the ones protesters come out for. But they highlight pedestrian cases that most people have or will experience at some point in their lives, or, if nothing else, care deeply about when watching Law & Order.

Three mid-level cases you should watch this week: Continue reading “The other three cases you should be watching this SCOTUS term” →

By Cara L. Gallagher, weekend contributor

Oral arguments for the last case of the Supreme Court’s term were this week. The case,  McDonnell v. U.S., was about ethics and potential corruption between a donor and the former governor of Virginia. The timeliness of this case is not lost on this citizen of Illinois, where we should probably consider putting links to contribute to our candidates’ legal defense funds on our ballots. That’d be funny if their chances of going to jail for ethics violations or corruption weren’t actually greater than fifty percent. Four out of the last seven governors have been imprisoned. But at least our criminal governors make it easy on the courts! Dear Children’s Memorial Hospital, I won’t release your $8 million of state funding until you give me a $50,000 campaign contribution. Sincerely, Gov. Rod Blagojevich.

But what would it mean if for “the first time in our history that a public official has been convicted of corruption despite never agreeing to put a thumb on the scales of any government decision.” Do we have to wait for them to put a thumb on the scale in order for it to be punishable corruption? Today’s case shines a spotlight on former Virginia governor Robert McDonnell and could serve as an opportunity for the Supreme Court to send a bold warning to elected officials everywhere that quid pro quo corruption need not be as heavy handed as a thumb on a scale. Continue reading “Political corruption on the docket for the last case of the SCOTUS term” →

Cara L. Gallagher, Weekend Contributor

Last week, the internet of trolls solace public opinion melted for a few days grounding every other political story to a halt. Justice Scalia suddenly died and a confluence of voices, both allies and foes, shouted loud enough to practically awake him from the dead. Once they quieted, the memorials began. Moments and stories told by those who knew him, Scalia “best-of” lists, and the resurrection of “argle-bargle” – Just when I thought we’d finally buried that phrase – dominated the news cycles, stealing the spotlight from Donald Trump. So many charming Scalia moments pointed to the complexity of a man I myself had complex feelings about.

My Scalia moment happened in July of 2012, my first year working at C-SPAN. My boss and mentor, Brian Lamb, knew my affinity for the Supreme Court and invited me to join him at the taping of a Q&A interview with the Justice, who’d just written his book Reading Law. After the interview, Justice Scalia’s handler shot me daggers as I hovered outside the green room. Had Mr. Lamb not intervened by introducing us, the picture below would never have happened. Here’s how one of my greatest celebrity moments went down:

Continue reading “So long, Justice Scalia” →

By: Cara L. Gallagher, weekend contributor

On its face, the freedom to express support for a political candidate seems exactly like the kind of speech the First Amendment was intended to protect. But such expressions are limited for individuals who work in the public sector. Police, fire department workers, and public school teachers – because tax dollars pay their salaries, city officials can suspend or terminate such employees for certain forms of political expression. That’s not to say they can muzzle all political speech. Public employees are voters with opinions who are just as entitled to engage in political discourse as private employees. In the town of Paterson, New Jersey, however, “overt involvement in a political election” is one example of a regulation that public employees can be penalized for violating. On Tuesday, the Supreme Court heard a case about whether or not a police officer’s actions of picking up a political sign for a local election count as overt involvement in a political election or is protected under the First Amendment. Continue reading “In the SCOTUS: Public employees, political speech, & errands for Mom” →

By Cara L. Gallagher, weekend contributor

This year, Groundhog Day will be celebrated on Wednesday, December 9^th. That’s the day Fisher v. The University of Texas at Austin – a case that tests the use of race in admissions processes – returns to the U.S. Supreme Court. The case heads back to the SCOTUS Wednesday only two years since Fisher I. The University received a warning shot last time when a 7-1 majority remanded the case back to the lower court ordering the UT prove the only way to achieve a “critical mass” of diverse students was to do so using race as a factor in their admissions process.

That was in June of 2013. Since then UT hasn’t changed its admissions processes and the 5^th Circuit Court of Appeals ruled again last summer that the school’s use of race passed constitutional muster.

So what does this mean? It means the SCOTUS was being conciliatory last time and likely won’t be so understanding this time.

UT is going to lose this case, sending affirmative-action policies on college campuses across America into a tailspin. But not a death spiral.

Continue reading “What happens after race-based admissions policies lose in the Supreme Court?” →

By Cara L. Gallagher, weekend contributor/holiday survivalist

Gaming the table talk at Thanksgiving when the participants include long-lost, rarely seen family members and friends requires much the same strategies as one’s approach to eating that day: Take control of the situation. Go in with a plan. Never attack. Take it one bite at a time and digest a bit before going farther.

Talk of the Republican candidates, the debates, and/or Hillary’s emails are the assumed political traps this Thursday. If those are the topics your turkey table is doomed to dwell on, consider switching the conversation to the no-less controversial but more scholarly topics: Supreme Court and its new term. Continue reading “Thanksgiving follies: Go ahead, talk politics at the dinner table.” →

By: Cara L. Gallagher, Weekend Contributor, and Elliot Louthen

This is a beautiful but restless time of year for SCOTUS junkies. The gorgeous, late summer sun sinks faster out of the sky signaling not only the end of the (best) season but also the nearness of the next Supreme Court term. While this reality thrills us, it gives pause and arouses questions. Is it possible to ever have a term as exciting as the last? There’s no way, right? Truth be told, we recall having the same concerns after the close of the October 2011 term, so, yes, there’s a chance.

Rather than stare at the calendar like a watched pot pre-boil, we thought we’d pull out the highlight reel and review some of the big cases from June, starting with Obergefell v. Hodges, aka the same-sex marriage case. In the aftermath of the victory for gay rights, it was easy to overlook the complexities of the decision and focus solely on celebrating or cringing (if you want an inside view of the Courtroom read this post). But it was much more complicated than calling it a simple win or loss. Continue reading “Taking a look back: The highlight reel from Obergefell v. Hodges” →

By: Cara L. Gallagher, weekend contributor

Hello, keyboard. Been a while, I know. Where have I been? Let’s just leave it at “busy, enjoying the blissful, sunny, cordless weeks of summer during the Court’s off-season.” There have been a lot of Cubs games—good games too, now that Chicago finally has a North side baseball team worthy of serious attention. There was some travel, a week at Harvard, articles and books read, Internet wormholes fallen into, and tennis, lots of tennis. The product of this bliss was a complete lack of desire to outwardly reflect on the travel, books, and education by writing. This isn’t like me at all. Historically, when I’ve read something even mildly compelling, I’ll tell no less than 15 people about it, link to it on Facebook and Twitter, and find some way to incorporate it into my writing. That’s not to say I didn’t read, watch, or see anything that wasn’t good. I did, no doubt, but my desire to take it in and push it out with my own analysis just never materialized. I think I know why and I think it has a little something to do with a prophetic book I read mid-June just before I started covering the final two weeks of an exciting (understatement) Supreme Court term.

I credit Dave Eggers’ book The Circle for inspiring steroid-like levels of productivity during those weeks and for my debilitating, meteoric crash once I left. Continue reading “What Dave Eggers’ The Circle, Amazon, and SCOTUS reporting taught me” →

By Cara L. Gallagher, weekend contributor

5 reasons you hated/loved the Obamacare decision (King v. Burwell):

What a week last week turned out to be at the Supreme Court! It certainly was exciting and unlike last year there wasn’t just one big case, like Hobby Lobby, that got so much attention. There were several big opinions that got the public’s attention over the last week, but one in particular has come up a lot this week.

Odds are you heard bits and pieces of the decisions, but it wasn’t exactly a light week for current events so you may have some gaps in the details. There’s also a very good chance you’re going to a holiday party this weekend where family or friends will gather and try ever so hard to avoid the cardinal sin of holiday gatherings – political discussions. They’re unavoidable and they always seem to happen whether you want them to or not. Rather than squirm or awkwardly walk away from the table when the inevitable happens, be ready and poised for that moment when someone says, “Did you hear about that healthcare decision?”

Such a question is not totally inappropriate. Given how recently the Court finished the term with not only controversial and timely cases, but also a spectacular array of passionate majority opinions, thundering dissents, and even one cantankerous concurrence read from the bench, it’s no surprise the subject could come up. Lots of folks fall back on current events as discussion starters at holiday parties when no one knows what else to talk about. Listen, we’re here to encourage you to resist the urge to flee either because you don’t feel confident enough to hold the conversation or you’re worried your politics may differ from the person engaging the discussion. It’s gonna be ok. Continue reading “Holiday party prep: 5 reasons you hated/loved the Obamacare decision” →